Pinnacle Highland v. Tomlinson

Pinnacle Highland v. Tomlinson

IN THE UTAH COURT OF APPEALS
 

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Pinnacle Highland,

Plaintiff and Appellee,

v.

Mitch Tomlinson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030386-CA
 

F I L E D
(March 10, 2005)
 

2005 UT App 111

 

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Third District, Sandy Department

The Honorable Michael K. Burton

Attorneys: Mitch Tomlinson, Salt Lake City, Appellant Pro Se

Kirk A. Cullimore and Lisa M. McGarry, Sandy, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

    Mitch Tomlinson appeals the trial court's entry of judgment against him. The trial court determined that a stipulation between Tomlinson and Pinnacle Highland (Pinnacle) was enforceable and entered judgment under the terms of the stipulation.

Although this case has been ongoing for more than one year, and is now fully briefed, on review of the record it appears there is no final appealable order. Both parties note in their briefs that Tomlinson filed a counterclaim along with his answer in this action. Tomlinson's counterclaim remains pending before the trial court.

    A final order must "finally dispose of the subject-matter of the litigation on the merits of the case." Bradbury v. Valencia, 2000 UT 50,¶9, 5 P.3d 649 (quotations and citation omitted). A judgment is final when it "ends the controversy between the parties litigant." Id. Although the trial court entered judgment against Tomlinson on Pinnacle's claim, Tomlinson's counterclaim against Pinnacle remains at issue. As a result, the judgment against Tomlinson is not a final, appealable order. See id. at ¶11.

    "An appeal is improper if it is taken from an order or judgment that is not final." Id. at ¶9. Where an appeal is not properly taken, this court lacks jurisdiction, and has only the authority to dismiss the case. See id. at ¶8.

    Accordingly, this appeal is dismissed without prejudice to the timely filing of a notice of appeal after the entry of a final order in this matter.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Gregory K. Orme, Judge